A federal judge in West Virginia ruled on March 31, 2014 that holders of water discharge permits, known as NPDES permits, must comply with water quality standards for parameters that the permit only requires to be monitored. In other words, even when the West Virginia Department of Environmental Protection (DEP) has only required a permittee to monitor and report on a certain parameter for the duration of the permit, the permittee must still comply with any applicable water quality standards for that provision, and may be subject to a federal court citizen suit, and costly civil penalties, under the Clean Water Act for failing to do so. Read the judge’s ruling here.
According to the court order, DEP only has the authority to “temporarily” excuse a permittee from compliance with water quality standards through a compliance schedule that culminates with final effluent limits becoming effective during the term of the permit. DEP lacks the authority, the court said, to suspend or delay the obligation to comply with water quality standards in any other manner.
The ruling arises out of citizen suits against multiple coal operators for allegedly violating selenium water quality standards. The permits at issue addressed selenium in a variety of ways. Some permits included final effective effluent limits; some did not mention selenium at all. Other permits included a compliance schedule for selenium along with a future date on which limits would become effective. And some permits only required the operator to monitor and report selenium concentrations, but did not assign selenium effluent limits.
The March 31 ruling stems from a provision set forth in all coal-related NPDES permits that incorporates by reference a state regulation requiring permitted discharges to comply with all water quality standards. In 2013, the same federal judge ruled that this permit provision subjects a permittee to a federal court Clean Water Act citizen suit for allegedly violating a water quality standard for a parameter that does not even appear in the permit. Under the March 31 ruling, a permittee may also be sued for allegedly violating the water quality standard for a parameter that DEP expressly designated as “report only” in the permit without assigning effluent limits.
DEP commonly includes “report only” provisions in permits for information gathering purposes to ascertain whether actual limits are necessary to protect water quality, especially when available information submitted with a permit application does not suggest that there will be any material adverse effect on the water quality of the receiving stream. Under this ruling, permittees may be hauled into federal court and subjected to civil penalties in excess of $32,000 per day for reporting concentrations of parameters in their discharge for which DEP has yet to assign effluent limits.
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